That section addresses discrimination by any “public
entity” in its provision of “services, programs or
activities.”

Judge Harvey Bartle III of the US District Court for the
Eastern District of Pennsylvania had previously refused to
dismiss Jones v. Commonwealth of Pennsylvania, finding that
a compelling majority of federal appellate courts had
previously concluded that states have no 11th Amendment
immunity under Title II.

On Second Thought

Now Bartle says he had to reconsider that ruling in
light of the decision by the US Supreme Court in Board of
Trustees of the University of Alabama v. Garrett.

In that case, the nation’s highest court said that
states are immune from suit under Title I of the ADA, the
section that covers employment discrimination. That ruling
said that Congress had not intended to abrogate the states’
11th Amendment rights, since they had identified no
“history and pattern of unconstitutional discrimination” by
the states against the disabled.

While acknowledging that Garrett dealt only with Title I
? and that the court had expressly declined to make a Title
II coverage determination – the District court still said
it believed the analytical framework from Garret was
applicable to this case.

Present Case

Plaintiff Michael Jones, who is blind, said he was
mistreated by the Pennsylvania Department of Public Welfare
and its Bureau of Blindness and Visual Services after he
enrolled in job training classes. Jones said he was
repeatedly expelled from those classes and forced to appeal
several times to regain entrance. As a result, he said the
16-week training course required nearly three years to
complete.

Jones insisted on acting as his own attorney despite
efforts by the court to appoint an alternative. Three
lawyers in a row turned down the case.

11th “Hour”

Senior Deputy Attorney General Claudia M. Tesoro
successfully argued that the court should reconsider its
January 2000 decision on the basis that the Supreme Court
has supported a trend of recognizing 11th Amendment
immunity for states. Although the 3rd Circuit has yet to
weigh in on the question, Tesoro noted that the 7th Circuit
and several trial judges have already extended Garrett’s
reasoning to bar claims under Title II.

When subjecting states to laws, Bartle found that the
power of Congress is limited to legislating to enforce the
14th Amendment. In the case of the ADA, he said, Congress
was seeking equal protection for the disabled.

The Garrett court elaborated on that point, saying,
“states are not required by the 14th Amendment to make
special accommodations for the disabled, so long as their
actions toward such individuals are rational.” Judge Bartle
found that the application of Title II to states went too
far, since Congress never identified a “history and
pattern” of discrimination by the states against the
disabled.

However, critics of the decision suggest that states
could still find their actions challenged since ADA suits
could still be brought against individual state
officials.